Women’s Lives, Men’s Laws

Women’s Lives, Men’s Laws

Douglas, Carol Anne

Women’s Lives, Men’s Laws

Catharine A. MacKinnon, Harvard University Press, 2005

For me, reading feminist theory by Catharine A. MacKinnon is like listening to music by Beethoven. I am staggered by how many ideas she has on every page and how clearly and incisively she expresses them. I haven’t read an exciting new feminist theory book in a long time, so this book was a real page-turner for me.

Actually, many of the essays in the book are talks MacKinnon had given or articles she had published in journals, but they are new to me. It’s sad that it’s hard for those of us who aren’t full-time academics to find new feminist articles, which are now dispersed in so many journals, until the articles come out in book form. But that’s the only problem I have with the book.

MacKinnon takes on the legal system of the United States and most other western nations. Cases are decided-that is, judges are making important decisions that affect the lives of all women-on the supposed grounds of abstract doctrines such as federalism and freedom of speech. But the funny thing is that most decisions turn out to support the existing power structure. “The same people who have power in life have power in law,” she writes.

Judges really decide cases on the basis of their viewpoints on the substantive issues, even though many of them don’t realize they are doing that, MacKinnon says. The substantive issues-the issues concerning power, who is going to be hurt or helped by a decision-should be brought out in the open, she says. Focusing on abstractions is just gaslighting or smoke and mirrors, she says. For example, the overriding issue in pornography is that it harms women, not that it’s an exercise of men’s speech. And the real issue in the U.S. Supreme Court’s decision striking down the part of the Violence Against Women Act (VAWA) that allowed women to sue perpetrators across state lines was male power, not federalism, as the justices claimed.

What she’s saying is heresy to almost everyone in the legal profession, including academics. And that’s why she’s been vilified by so many.

Even more heretical, MacKinnon says the basis on which U.S. and European concepts of equality law are grounded guarantees inequality.

That is, the western legal tradition is based on Aristotle’s idea that equal treatment means treating people who are similar in the same way. Men of property should be treated in the same way as other men of property, women should be treated in the way as other women, and slaves should be treated in the same way as other slaves. (The western world took a wrong turn when it embraced Aristotle’s philosophy rather than the philosophy of Socrates. According to Plato, Socrates said that men and women were similar in nature and that justice for men and women should be the same. Note that the Athenians put Socrates to death for corrupting the youth by teaching them to ask questions and Aristotle became a tutor to world conqueror Alexander of Macedon; perhaps these destinies foreshadowed the course of western civilization.)

Although the United States and Europe have stopped using Aristotle’s theory to justify slavery, their laws are still based on the concept that people should be treated the same only when they are similarly situated. As MacKinnon observes, that means that women and men (and other disadvantaged and advantaged classes) should be treated equally only to the extent that they already are equal. She quotes Anatole France’s comment that the rich and poor are equally forbidden to sleep under bridges. The same logic is used when judges pretend to be gender-neutral and fail to recognize that only women can get pregnant and that laws that interfere with women’s reproductive freedom constitute sex discrimination.

The laws on race discrimination also have been based on an inadequate definition of equality because people of color had no part in deciding on the foundations of our legal system, MacKinnon says.

Canada’s Charter of Rights and Freedoms was drafted in the 1970s; white men weren’t the only ones who had an opportunity to shape it. It includes a clause saying that the Charter’s rights are guaranteed “equally to male and female persons.” In 1989, Canada’s Supreme Court ruled that equality under that the Charter requires the laws “promote equality,” a much more active standard than the U.S. Constitution’s wording, which says that everyone should receive equal treatment under the law.

As an attorney operating in the United States, MacKinnon has to consider what approach to take to the U.S. Constitution. She says that legal scholars and judges use “fidelity to” the Constitution as a smokescreen. We should also ask about the Constitution’s fidelity to the people, MacKinnon says. White women and women and men of color had no say in shaping the Constitution. Fidelity to the Constitution should depend on the extent to which it protects all the people. If it doesn’t, then she says she’s “an adulterer” regarding the Constitution, not faithful to it. She accepts it to the extent that the Equal Protection Clause of the 14th Amendment really does protect everyone. That clause made the Constitution more legitimate, she says. The Constitution will be more legitimate if it includes the Equal Rights Amendment, she adds.

MacKinnon takes an interesting approach to the ERA. She says feminists made a mistake when they denied that it had radical potential. If women really were treated equally to men, that would be a huge difference. The ERA’s opponents were well aware of that, but proponents pretended it was not a huge change, so women didn’t understand the stakes. The women who worked for it, by and large, did not admit how much misogynist opposition there really was, she says. They imagined that “sex equality could be nonthreatening and still be real.”

MacKinnon says that Alice Paul’s original (1923) wording of the ERA, which said “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction,” was more radical than the wording developed in 1943 that later came close to adoption. “Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.” Feminists should have pressed for the broader wording, according to MacKinnon.

Sex equality is almost an oxymoron, MacKinnon writes. Sex is the reason that men have kept women unequal; the inequality is grounded in sex. Equality law is based on men’s experience, not women’s; men’s experiences of group-based subordination have not centered on sexual and reproductive use, although that has sometimes happened, she says. The men in power don’t recognize that rape, battering, pornography, prostitution, and denial of reproductive rights are all forms of sex discrimination, she says. Her work is to get them recognized as such. There has been some success in the case of sexual harassment, which was not seen as sex discrimination until the 1970s. She points out that poor women of color were the ones who initiated the lawsuits that resulted in the first decisions that sexual harassment and discrimination against pregnant workers are forms of sex discrimination.

Most women don’t feel that they can change the laws. “Even when a woman’s injury is recognized by law, which is seldom, most women lack the resources to use” the law, she notes. When women have contact with the law, it usually means trouble for them, MacKinnon says. Most women who are sent to prison are there because of what they have done to the men who batter them or the crimes they have committed with the men who batter them. The crime is really first-degree bad choice of boyfriend, she says.

Joint custody laws reinforce male power. Often, the mother does the day-to-day work but the father still controls the big decisions. “Not even divorce disturbs the power relationship of marriage,” MacKinnon observers.

Basing rights on the concept of privacy does not help women, she says. Equality is not guaranteed in private, she points out. “Women in everyday life have no privacy in private” because they are subject to male power, MacKinnon writes.

The law is complicit in the impoverishment of women, she says. Laws supposedly prohibiting discrimination collaborate with the perpetrators of discrimination because women who seek justice have to show that the discrimination was intentional and have to prove that they are “similarly situated” to men. The law of rape collaborates with rapists because it focuses on “consent” instead of mutuality, she says. U.S. rape laws presuppose an inequality between women and men in sex, she points out.

Feminists have debated whether rape is an act of violence or an act of sex. But MacKinnon says it is primarily an act of inequality.

Other nations recognize this concept. In 1993, the Supreme Court of Canada held that “sexual assault is in the vast majority of cases gender-based. It…constitutes a denial of any concept of equality for women.” Also, the United Nations’ General Assembly, the Convention on the Elimination of Discrimination Against Women (CEDAW), the U.N.’s 1995 Beijing Conference, and the Council of Europe all have condemned sexual violence as a function of unequal power between the sexes, MacKinnon points out. Until I read this book, I had no idea that other countries recognized this concept.

Men often see liberty in sexual terms; liberty for men means access to women, MacKinnon says. Liberty for men means that women have to be available as prostitutes and in pornography. But prostitution and pornography mean loss of liberty for women, she says. Prostitutes should sue pimps under the 13th Amendment, which prohibits slavery and involuntary servitude, MacKinnon suggests.

Far from being “in bed with the right,” as some liberals who believe that pornography is protected speech have charged, MacKinnon says men on the right and the left have essentially the same views on women: they want women to be available for sex.

Shockingly, she tells how The New York Times refused to cover the anti-pornography movement after a reporter managed to get in one report on a conference in 1979; the managing editor told the writer that writing about the subject was “bad for the First Amendment.” That makes it pretty clear whose speech is protected and whose is not.

The U.S. Supreme Court’s decision in the United States v. Morrison, which ruled unconstitutional the part of VAWA that allowed victims of violence to sue perpetrators across state lines, in effect said that Congress cannot provide meaningful relief to women who have been raped or battered. Amazingly, in VAWA Congress actually passed a law saying “[a]ll persons in the United States shall have the right to be free from crimes of violence motivated by gender.” (I can’t imagine our current Congress passing such a law!) But the Supreme Court said Congress didn’t have the right to pass such a law because violence against women doesn’t affect “interstate commerce.” Justice Souter wrote an opinion saying that violence greatly affects women economically and that the majority took much too narrow a view of commerce. Supposedly, the Supreme Court issued this ruling to protect states’ rights, but many states supported VAWA. (When the issue is states’ rights to tax corporations, the Supreme Court is not always so eager to protect states’ rights.)

MacKinnon points out that Congress is empowered by treaty to make such laws; the International Covenant on Civil and Political Rights, which the United States ratified in 1992, requires the signatories to protect their people’s rights and is not limited to protection against official acts but also includes “private” acts.

Echoing Abraham Lincoln’s question about whether a nation that is half slave and half free can long endure, MacKinnon says the Supreme Court’s decision on VAWA raises “the question whether the structure of a nation organized to preclude relief for the violation of one half of its people by other should survive.”

It is disingenuous to tell women not to try to change the laws, MacKinnon says. It is true that “getting power is not the same as transforming it, but how can we transform it if we cannot get it?”

There’s more to say about this book than I can say in a review. MacKinnon analyzes rape, pornography, and prostitution in depth. I want to go on for pages and pages, and quote everything she says. But I can’t do that. So please, read it, think and act.

Copyright Off Our Backs, Inc. May/Jun 2005

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